UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-5040

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
CARLOS B. GUZMAN CRUZ, a/k/a Gato,
Defendant - Appellant.

No. 09-5049

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,
Defendant - Appellant.

No. 09-5057

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,

Defendant - Appellant.

No. 10-4773

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
CARLOS B. GUZMAN CRUZ, a/k/a Gato,
Defendant - Appellant.

No. 10-4774

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JOSE M. AGUILAR ORANTES, a/k/a Santos, a/k/a Psychie,
Defendant - Appellant.

No. 10-4775

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DENNIS L. GIL BERNARDEZ, a/k/a Negro, a/k/a Big Homie, a/k/a
Dopre, a/k/a Pando,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam OGrady, District
Judge.
(1:09-cr-00216-LO-1; 1:09-cr-00216-LO-2; 1:09-cr-00216LO-3)

Submitted:

June 30, 2011

Decided:

July 18, 2011

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Todd Hunter, Arlington, Virginia; Alan H. Yamamoto,

Alexandria, Virginia; Craig W. Sampson, BARNES & DIEHL, PC,
Chesterfield, Virginia, for Appellants.
Neil H. MacBride,
United States Attorney, Patricia Haynes, Zachary Terwilliger,
Assistant United States Attorneys, Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney General, J. Campbell Barker, Criminal Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In these consolidated appeals, Dennis L. Gil Bernardez
and

Jose

Carlos

B.

M.

Aguilar

Guzman

Orantes

Cruz

appeal

challenges

their

his

sentences

conviction

of

for,

and

offenses

arising from, three shootings on October 6, 2008, in Reston,

Virginia, and the subsequent effort to dispose of the gun used
in the shootings.

We affirm the sentences imposed on Bernardez

and Aguilar Orantes, and we affirm Cruz conviction.

We also

affirm the district courts denial of the Appellants motion for

a new trial based on newly discovered evidence.
The
Bernardez

governments

was

the

leader

evidence
of

the

at

trial

Normandie

established
Locos

that

Salvatrucha

(NLS), a clique of the Mara Salvatrucha (MS-13) gang in northern

Virginia.

Aguilar Orantes was a member of the NLS living in

northern Virginia.

Cruz was a member of the NLS living in

Richmond, Virginia.

The shootings were preceded by an attack on

David Kuk, a former member of the rival 18th Street gang, by MS13 member Antonio Urrutia Barrerra and others traveling in a
Ford Explorer driven by Jose Aguilar Orantes.

That was followed

by an attack on Aguilar Orantes and his girlfriend by Kuk and

his friend Dalton Beck, a former Crips gang member.
On

Monday,

October

6,

Malcom Wilson at Freetown Court.

2008,

Kuk

was

with

Beck

Aguilar Orantes, Barrera, and

Dennis Gil Bernardez walked up to Kuk, Beck, and Wilson.

4

and

As

they

approached,

Which

Bernardez

ones?

Bernardez

drew

Aguilar
a

handgun

asked
Orantes
and

Aguilar

Orantes

pointed

pointed

it

to
at

in

Spanish,

Kuk

and

Beck.

Beck,

who

fled.

Bernardez fired at Beck but missed him, although the bullet went
through his sweatshirt.
Bernardez then shot Kuk multiple times while Kuk was
trying to run away.

Wilson held up his hands and said, I am

not in their gang, I have no problem with you.

Bernardez

started to walk away, but then said to Wilson, I cant leave

any evidence.

Bernardez shot Wilson at least twice.

Kuk and

Wilson suffered serious injuries, but survived.

Jorge

Palacios,

former

MS-13

member

turned

FBI

informant in Richmond, Virginia, testified at trial that, before

and after the shootings, he made audio and video recordings of
his conversations with Cruz, who had previously sold him guns
from northern Virginia which had been used by MS-13 members in
crimes

in

northern

Virginia.

Palacios

told

Cruz

he

had

connections who could take guns used in shootings out of the

country.
On October 6, 2008, Cruz told Palacios he wanted to
buy a clean gun to take to northern Virginia to exchange for
two guns that had been used in crimes there.
called Bernardez in northern Virginia.

On October 7, Cruz

Palacios recorded Cruzs

half of the conversation, which concerned the Monday, October 6

5

shootings, and the need to get rid of a gun that had been used
in more than thirteen shootings.
Cruz

asked

Palacios

if

he

had

On October 9, 2008, Palacios

checked

the

news

coverage

of

Mondays shootings.
On October 17, 2008, Cruz and another person went to
northern

Virginia

and

brought

Barrera,

who

was

present

when

Bernardez shot Kuk and Wilson, to Richmond to stay in a safe

house, a hotel room Cruz rented.

That evening, Barrera was

involved in stabbing a rival gang member. 1

The next day, Cruz

called Bernardez and they agreed that, because of the stabbing,

the gun deal would be delayed.
On October 31, 2008, Cruz brought the guns to Richmond
from

northern

Virginia.

The

next

day,

November 1,

2008,

Palacios first went to the safe house without any surveillance

equipment to see the guns.

Cruz held up one of the guns and

told him the gun had been used in Mondays shooting.

Palacios

then met with an FBI agent and returned to the safe house later
that day to buy the two guns.

A firearm and ballistics forensic

expert testified at trial that the bullets and bullet jackets

found at the scene of the shootings were fired from one of the
guns that Palacios bought from Cruz, a .357 magnum revolver.

Barrera was separately prosecuted for the stabbing and for

another shooting in northern Virginia.

None the defendants moved for acquittal under Fed. R.

Crim. P. 29.

Bernardez and Aguilar Orantes were convicted of

conspiracy to commit murder in aid of racketeering, attempted

murder in aid of racketeering, assault with a dangerous weapon
in aid of racketeering, and violations of 18 U.S.C. 924(c)
(2006).

Aguilar

Orantes

was

attempted murder of Wilson.

accessory

after

racketeering

the

and

fact

assault

acquitted

of

the

assault

and

Cruz was convicted of being an

to

attempted

with

murder

dangerous

in

weapon

in

aid

of

aid

of

racketeering.
Bernardez

was

sentenced

to

total

of

960

months

imprisonment, which included sentences of ten years on Count 9,

and twenty-five years on Counts 10 and 11, all consecutive to
the sentences on the remaining counts and to each other, as
required

under

received

18

U.S.C.

total

924(c)

sentence

of

(2006).

660

Aguilar

months,

Orantes

which

included

consecutive sentences of ten years for Count 9 and twenty-five

years

for

months

Count

11.

Cruz

imprisonment.

unsuccessfully

at

was

Bernardez

their

joint

sentenced
and

to

Aguilar

sentencing

total
Orantes

hearing

of

144

argued

that

the

924(c) sentences could run concurrently.

Six months after they were sentenced, Appellants moved
for

new

trial

under

discovered evidence.

Fed.

R.

Crim.

P.

33

based

on

newly

They alleged that Sergio Gerardo Amador, a

7

government witness who testified early in the trial about MS13s racketeering activities, had given false testimony when he
said he fatally shot Melvin Reyes, a member of a rival gang.
The

new

trial

motion

was

based

on

information

that

another

incarcerated MS-13 member, Jose Enrique Gordillo Portocarrero,

believed

that

Amador

Reyes murder.

had

falsely

claimed

to

be

involved

in

After a hearing, the district court determined

that Gordillo had confused the Reyes murder with another murder,
that his information was inadmissible hearsay that could not
necessitate a new trial, and that the government had presented
overwhelming

evidence

Amadors testimony.

of

racketeering

activity

even

without

The motion for a new trial was denied.

In this appeal, Bernardez and Aguilar Orantes contend

that

924(c)

single

use,

does
as

Wilson, and Beck.

not

they

require

consecutive

characterize

the

sentences

shots

fired

for

at

Kuk,

They rely on dicta in United States v. Camps,

32 F.3d 102, 106-07 (4th Cir. 1994) (accepting for purposes of

the

case,

but

not

adopting,

the

governments

position

that

multiple concurrent 924(c) sentences arising from simultaneous

offenses was not error).

However, their position is at odds

with Deal v. United States, 508 U.S. 129, 135 (1993) (holding
that

second

or

subsequent

924(c)

conviction

is

any

such

conviction after the first conviction, without regard to whether

the offenses occurred in a single or separate incidents), and
8

United States v. Higgs, 353 F.3d 281, 333-34 (4th Cir. 2003)
(holding

that

multiple

consecutive

sentences

were

appropriate

where three victims were shot and killed in one incident). 2

Section 924(c)(1)(A) provides that, [e]xcept to the
extent that a greater minimum sentence is otherwise provided by
this subsection or by any other provision of law, any person
who violates 924(c) is subject to a mandatory minimum sentence
of five years, 924(c)(1)(A)(i), or seven years if the firearm
is brandished, 924(c)(1)(A)(ii), or ten years if the firearm
is

discharged,

Bernardez

argue

924(c)(1)(A)(iii).
that

the

except

Aguilar

clause

means

Orantes
that,

and

when

defendant is subject to a mandatory minimum sentence under more

than one subsection of 924(c), the lower sentence should be
concurrent with the higher sentence.

They rely on decisions

that have interpreted 924(c) in this manner but are no longer

good law, principally United States v. Williams, 558 F.3d 166
(2d

Cir.

2009),

abrogated

Abbott

by

v.

United

States,

and

Gould v. United States, 131 S. Ct. 18 (2010) (hereafter Abbott).

The Supreme Court held in Abbott that a defendant is
subject

to

mandatory

minimum

sentence

for

924(c)

conviction even if he also receives a higher mandatory minimum

2

The government suggests that Aguilar Orantes and Bernardez

are challenging their multiple 924(c) convictions, as well as
their sentences. However, they do not make that argument.

sentence on another count of conviction.

23.

Although

Abbott

and

Gould

each

Abbott, 131 S. Ct. at

had

only

one

924(c)

conviction, the Supreme Court rejected the reasoning in Williams

and the other cases on which Aguilar Orantes and Bernardez rely.
The Supreme Court held that the except clause simply requires
the sentencing judge to impose the highest applicable sentence
under

924(c)(1)(A),

rather

than

stacking

sentences

under

several subsections for one 924(c) conviction, and furnishes

the same no-stacking instruction for cases in which 924(c) and
a

different

Id. at 30.
consecutive

statute

both

punish

conduct

offending

924(c).

Thus, the district court did not err when it imposed

sentences

for

Bernardez

and

Aguilar

Orantes

multiple 924(c) convictions.

Cruz contends that the evidence was insufficient to
support his convictions for accessory after the fact.

To prove

that Cruz was an accessory after the fact as charged in Counts

13 and 14, the government had to prove (1) that Cruz knew that
Bernardez or Aguilar Orantes had committed the offenses charged
in

Counts

3-5

and

6-8;

(2)

that

Cruz

received,

relieved,

comforted, or assisted one or both of them; and (3) that Cruz

did so in order to hinder or prevent their apprehension, trial,
or punishment.
Although Cruz did not move for a judgment of acquittal
under Rule 29 at trial, generally, a jurys verdict must be
10

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.

Glasser v. United

States, 315 U.S. 60, 80 (1942); see United States v. Perkins,

470 F.3d 150, 160 (4th Cir. 2006).
circumstantial

and

direct

The court considers both

evidence,

drawing

all

reasonable

inferences from such evidence in the governments favor.

States

v.

evaluating

Harvey,

532

sufficiency

F.3d
of

326,

the

333

(4th

evidence,

Cir.

this

United

2008).

court

In

does

not

reweigh the evidence or reassess the factfinders determination

of witness credibility, United States v. Brooks, 524 F.3d 549,
563

(4th

Cir.

insufficiency
clear.

2008),

grounds

and

only

can

when

reverse

the

conviction

prosecutions

failure

on
is

United States v. Moye, 454 F.3d 390, 394 (4th Cir.

2006) (en banc) (internal quotation marks omitted). 3

Cruz argues first that the evidence did not show that
he knew who was involved in the shootings on October 6, 2008, or
that the gun he sold to Palacios on November 1, 2008, was the
gun used in the October 6 shootings.
district

court

elements

the

instructed

government

the

had

to

jury
prove

He also argues that the

that
was

one
that

of
the

the

three

crime

of

The government asserts that, because Cruz did not move for
a directed verdict in the district court, review is for plain
error. United States v. Wallace, 515 F.3d 327, 331-32 (4th Cir.
2008).
We conclude that, under either standard of review, the
convictions may be affirmed.

11

attempted murder in aid of racketeering or the assault with a

dangerous weapon was committed by both Bernardez and Aguilar.
With respect to the latter claim, it is well-established that
where an indictment charges in the conjunctive several means of
violating a statute, a conviction may be obtained on proof of
only one of the means.

United States v. Simpson, 228 F.3d

1294, 1300 (11th Cir. 2000).

Therefore, the government could

prove this charge by showing that Cruz knew either Bernardez or

Aguilar Orantes committed the crime and that he acted to help
either of them avoid prosecution afterward.
Palacios testimony, supported by cell phone records
and his recorded conversations with Cruz, established that, both
before and after the October 6, 2008, shootings in Reston, Cruz
was in regular contact with Bernardez and that Cruz talked to
Bernardez on October 7, 2008, the day after the shootings.
number

of

calls

between

Cruz

significantly after October 6.

and

Bernardez

The

escalated

Moreover, Cruz drove to northern

Virginia to pick up Barrera, who was present at the October 6

shootings, and bring him to a safe house in Richmond.

Cruz then

traveled to northern Virginia a second time to obtain the gun

used in the shootings.

From this evidence, the jury could infer

that Cruz learned that Bernardez had shot Kuk and Beck, even if
he

was

unaware

of

Aguilar

Orantes

shootings.
12

identity

or

role

in

the

Cruz focuses on Palacios testimony that Cruz told him

that Barrera was the shooter and that Barrera himself claimed to
have been the shooter, arguing that this shows that Cruz did not
knowingly

act

shootings.

to

help

Bernardez

avoid

prosecution

for

the

However, in weighing the evidence, the jury could

reasonably have found it more believable that Cruz learned that

Bernardez was the actual shooter through his many conversations
with Bernardez and his trips to northern Virginia.
Cruz also argues that the government did not prove
that he knew the gun he sold to Palacios was the gun used in the
October

Palacios

shootings.
testimony

in

Cruz

misrepresents

making

this

one

argument.

portion

of

According

to

Palacios testimony, Cruz did not say he wanted nothing to do

with the gun used in any shooting or complain that he had been
deceived in the past when dealing with guns that may have been
used in crimes as it was not his desire to do so.

Palacios

testified under cross-examination that Cruz said he wanted clean

guns to take to northern Virginia to exchange for guns that had
been

used

by

MS-13

in

crimes.

Cruz

only

concern

was

that

someone might sell him a gun that had been used in a crime under
the pretense that it was a clean gun.
Cruz asserts that his statement to Palacios that one
of

the

guns

Cruz

sold

him

was

the

gun

used

in

Mondays

shooting did not connect the gun to the October 6 shootings.

13

However, Palacios testified that Cruz consistently referred to

the

October

shootings

as

Mondays

shooting.

Taken

in

context, it is clear that when Cruz referred to the gun he sold

Palacios on November 1 as the gun used in Mondays shooting,
he meant it was the gun used on October 6, 2008.

On balance, we

conclude

support

that

the

evidence

was

sufficient

to

Cruz

convictions as an accessory after the fact.

Last, Appellants challenge the denial of their Rule 33
motion for a new trial.

We review a district courts denial of

a new trial motion for a new trial for abuse of discretion.

United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).
receive

new

trial

based

on

newly-discovered

evidence,

To
a

defendant must show that: (1) the evidence is newly-discovered;

(2) he has been diligent in uncovering it; (3) the evidence is
not

merely

material

to

cumulative

or

the

involved;

issues

impeaching;
and

(4)
(5)

See id.

probably produce an acquittal.

the
the

evidence

evidence

is

would

Unless the defendant

demonstrates all five of these factors, the motion should be

denied.

United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989).
The

district

court

correctly

determined

that

the

defendants were not entitled to a new trial based on information

from Gordillo Portocarrero, a jailhouse snitch, that allegedly
contradicted

Sergio

Amadors

testimony
14

about

murder

he

committed, which was part of the governments evidence of MS13s pattern of racketeering activity.
information

proved

to

Amadors

testimony

at

material

and

would

be

incorrect

all.

not

and

Thus,

have

Gordillo Portacarreros
thus

the

produced

did

not

information

an

acquittal,

impeach
was
even

not
if

Amador had been the only witness to testify about racketeering

activity by MS-13, which he was not.

Therefore, the district

court did not abuse its discretion in denying the motion for a
new trial.
We therefore affirm the convictions and the sentences
imposed by the district court.

We affirm the district courts

denial of Appellants motion for a new trial.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

the

court

are
and

argument would not aid the decisional process.

AFFIRMED

15